NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 1 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEWPORT-MESA UNIFIED SCHOOL No. 23-55351 DISTRICT, a public entity, D.C. No. Plaintiff-Appellee, 8:20-cv-01857-SPG-JEM

v.

MEMORANDUM*

D. A.; D. A., on behalf of their minor child,

M.A.,

Defendants-Appellants.

Appeal from the United States District Court for the Central District of California Sherilyn Peace Garnett, District Judge, Presiding

Argued and Submitted March 25, 2024 Pasadena, California

Before: RAWLINSON, LEE, and BRESS, Circuit Judges.

Plaintiffs allege that the Newport-Mesa Unified School District failed to

provide their son, M.A., with a “free appropriate public education” (FAPE) under

the Individuals with Disabilities Education Act (IDEA), thereby entitling plaintiffs

to reimbursement for the costs of M.A.’s private schooling. An Administrative Law

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Judge (ALJ) granted plaintiffs partial relief. Both sides appealed the ALJ’s ruling.

The district court ruled for the District in full, denying plaintiffs reimbursement.

We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s

legal determinations de novo and its factual findings for clear error. Forest Grove

Sch. Dist. v. T.A., 523 F.3d 1078, 1083–84 (9th Cir. 2008). But we give “due weight”

to the ALJ’s determination that a district’s “individualized education program” (IEP)

offers a FAPE. Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877,

888 (9th Cir. 2001). We affirm.

1. The District’s December 2017 IEP offered M.A. a FAPE. To satisfy the

IDEA, an IEP must be “reasonably calculated to enable a child to make progress

appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v.

Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). Plaintiffs have not shown

that the District’s December 2017 IEP fell below this standard.

First, the December 2017 IEP did not deny M.A. a FAPE by placing him in

the general education classroom for 95 percent of the school day. The IDEA

mandates that school districts “ensure that children with disabilities are educated

alongside their non-disabled peers ‘[t]o the maximum extent appropriate.’” D. R. by

& through R. R. v. Redondo Beach Unified Sch. Dist., 56 F.4th 636, 643 (9th Cir.

2022) (quoting 20 U.S.C. § 1412(a)(5)(A)). Plaintiffs argue that M.A.’s 95-percent

regular classroom placement was improper because M.A. experienced persistent

2 bullying there. But plaintiffs’ argument relies almost entirely on the testimony of

their expert, Dr. Shinn, whom the ALJ deemed “unpersuasive,” including because

she “did not consider the personal accounts from [District] staff.” The ALJ

meanwhile reasonably credited the District’s witnesses, given their personal

experience with M.A. See Crofts v. Issaquah Sch. Dist. No. 411, 22 F.4th 1048,

1053 (9th Cir. 2022).

Second, the December 2017 IEP stated sufficient goals to “enable [M.A.] to

be involved in and make progress in the general education curriculum.” 20 U.S.C.

§ 1414(d)(1)(A)(i)(II)(aa). Plaintiffs fault the IEP for failing to include a goal that

would help manage M.A.’s anxiety or depression and to divide its “social autopsy”

goal into four goals. Yet the former was reasonably covered under other goals, and

“[a]n IEP is not required to contain every goal from which a student might benefit.”

Capistrano Unified Sch. Dist. v. S.W., 21 F.4th 1125, 1133 (9th Cir. 2021). Plaintiffs

do not explain why the omission of their desired goals prevented the IEP from

facilitating M.A.’s educational development.

Third, the December 2017 IEP offered adequate services and

accommodations in furtherance of its annual goals. See 20 U.S.C.

§ 1414(d)(1)(A)(i)(IV). Plaintiffs argue that the IEP was deficient because it omitted

additional specialized writing instruction, more individual speech and language

services, further measures to ensure M.A.’s use of his frequency modulation (FM)

3 microphone system, and appropriate social and emotional services. Yet, M.A.’s

grades, standardized test scores, and other evidence of performance indicated that

M.A. was at that time making progress in his writing and language abilities.

Moreover, the District at the December 2017 IEP meeting offered M.A. a variety of

counseling services. There is no indication that the District needed to offer further

services or accommodations in order to provide M.A. with a FAPE.

2. The District’s May 2019 IEP also did not deny M.A. a FAPE. That IEP

reduced M.A.’s time in the general education classroom to only 60 percent of the

school day, while also adding new goals and accommodations. Plaintiffs challenge

these offerings on much the same grounds as they did those in the December 2017

IEP. We conclude there is insufficient basis for concluding that the May 2019 IEP—

which was by all accounts more robust than the December 2017 IEP—was not

appropriately conducive to M.A.’s educational progress.

3. Plaintiffs allege that the District denied M.A. a FAPE through several

procedural violations of the IDEA. None of plaintiffs’ allegations has merit.

First, the District was not required to conduct an annual IEP review in April

2018. “Generally, [the District] must prepare an annual IEP for students with a

disability in its jurisdiction.” Capistrano, 21 F.4th at 1137 (citing 20 U.S.C.

§§ 1414(d)(2)(A), (4)(A)). But “when a child has been enrolled in private school by

h[is] parents, the district only needs to prepare an IEP if the parents ask for one.” Id.

4 at 1138. Here, plaintiffs enrolled M.A. in private school in January 2018 and did

not request an IEP review after that point. Plaintiffs argue that Capistrano is

distinguishable because the parents in that case expressed an intent for their child to

remain permanently in private school, whereas plaintiffs here only indicated that

they were keeping M.A. in private school at this time. We do not view that claimed

distinction as material under the logic of Capistrano. See id. at 1139–40.

Plaintiffs additionally argue they lacked adequate notice that the District

would not automatically review M.A.’s IEP because the District’s “Certification of

Intent” form was ambiguous on that point. Setting aside the lack of record evidence

on plaintiffs’ claimed understanding of these forms, the District also sent plaintiffs

a separate letter expressly requesting that they notify the District if they “would like

[the District] to hold [M.A.’s] 2018 Annual IEP,” and plaintiffs never responded.

The suggestion that plaintiffs did not understand the process is also undermined by

plaintiffs’ apparent familiarity with the IEP procedures, which the record broadly

reflects. For all these reasons, there was no procedural violation under Capistrano.

Second, the District’s five-week delay in conducting M.A.’s triennial

reevaluation did not deny M.A. a FAPE. Even assuming this delay resulted in the

District violating its obligation to reevaluate special needs children “at least once

every 3 years,” 20 U.S.C. § 1414 (a)(2)(B)(ii), a procedural violation of the IDEA

denies a child a FAPE only if it “results in the loss of educational opportunity or

5 seriously infringes the parents’ opportunity to participate in the IEP formation

process.” J.W. ex rel. J.E.W v. Fresno Unified Sch. Dist., 626 F.3d 431, 451–52 (9th

Cir. 2010). In this case, there is no indication that the five-week delay had either

effect.

Third, the District’s triennial reevaluation was “sufficiently comprehensive to

identify all of [M.A.’s] special education and related services needs.” 34 C.F.R.

§ 300.304(c)(6). Plaintiffs contend that the reevaluation was incomplete because it

omitted “self-rating scales,” a “narrow writing assessment,” and a “conversation

sample.” But plaintiffs here rely primarily on the testimony of their experts, which

the ALJ reasonably discounted as unpersuasive. See Crofts, 22 F.4th at 1053. Nor

did the absence of two staff members from the classroom observation period render

the reevaluation inadequate, given the other District staff members who observed

M.A.

Fourth, the District was not required to initiate a due process hearing after

plaintiffs rejected its May 2019 IEP. In this case, the school district’s obligation to

defend its IEP via a due process proceeding applies only where parents partially

consent to the IEP and the district “‘determines that the proposed special education

program component to which the parent[s] do[] not consent is necessary to provide

a’ FAPE.” Capistrano, 21 F.4th at 1136 (quoting Cal. Educ. Code § 56346(f)).

Because plaintiffs here consented to no part of the May 2019 IEP and were “seeking

6 a different program than what [the District] consider[ed] sufficient to provide a

FAPE,” id., the District did not need to file for due process.

Fifth, the District did not deny M.A. a FAPE by failing to provide plaintiffs

with a prior written notice (PWN) regarding its COVID-19 closure. The IDEA

requires districts to “provide [a PWN] to a child’s parents whenever the agency

‘proposes to initiate or change’ or ‘refuses to initiate or change the identification,

evaluation, or educational placement of the child. . . .’” Compton Unified Sch. Dist.

v. Addison, 598 F.3d 1181, 1183 (9th Cir. 2010) (quoting 20 U.S.C. § 1415(b)(3)).

Because M.A. was not enrolled with the District during its COVID-19 closure, the

closure effected no “change” in his education. And even if the District was required

to offer plaintiffs a PWN, there is no evidence that its failure to do so cost M.A. any

educational benefit. See Fresno, 626 F.3d at 451–52. Any error was thus harmless.

AFFIRMED.

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